Bench Memos

No More Contrived Victims

In a lengthy blog post, Linda Greenhouse addresses the question, “Is Sandra Fluke this election cycle’s Lilly Ledbetter?” Greenhouse’s post is titled “Accidental Heroines,” but “Contrived Victims” would be a better title.

Lilly Ledbetter, you’ll recall, was supposedly (in Greenhouse’s phrase) “dissed by five members of the Supreme Court,” who ruled in 2007 (in Ledbetter v. Goodyear Tire & Rubber Co.) that the time period for filing a charge of employment discrimination with the EEOC begins when the discriminatory act occurs. The cause for Ledbetter’s victimhood ignores some inconvenient realities. As Stuart Taylor has written, the decision was “in fact perfectly reasonable” and “Obama and other Democrats were able to make the court’s ruling against Ledbetter seem outrageous only by systematically distorting the undisputed facts.”

For starters, the majority explained in detail that its holding flowed directly from four Supreme Court precedents over the previous three decades. Further, the Court expressly left open the question “whether Title VII suits are amenable to a discovery rule”—whether, that is, in those instances in which the employee was not aware that she had been discriminated against when the discriminatory act occurred, the charging period would instead run from the time that she discovers that she has been discriminated against. As the Court noted, Ledbetter did “not argue that such a rule would change the outcome in her case.”

The obvious reason why Ledbetter did not argue for a discovery rule was that, as Taylor explains in detail here, she had waited more than five years after she learned of the discrimination to file her EEOC charge—far longer than the 180-day charging period that applied under Title VII.

Greenhouse purveys Ledbetter’s revisionist claim that she had merely “suspected the pay disparity, but her manager told her that the men who boasted about their pay were just exaggerating.” But, as Taylor writes (emphasis added):

Ledbetter admitted in her sworn deposition that “different people that I worked for along the way had always told me that my pay was extremely low” compared to her peers. She testified specifically that a superior had told her in 1992 that her pay was lower than that of other area managers, and that she had learned the amount of the difference by 1994 or 1995. She added that she had told her supervisor in 1995 that “I needed to earn an increase in pay” because “I wanted to get in line with where my peers were, because… at that time I knew definitely that they were all making a thousand [dollars] at least more per month than I was.”

Yet contrary to Obama’s assertions, Ledbetter did not “immediately” file suit — not in 1992, and not in 1995. Instead, she waited to sue until 1998, when her retirement was imminent. This was well over five years after she had learned of the pay disparities. It was also after a supervisor whom she blamed for much of the alleged discrimination had died, making it impossible for the employer to refute those allegations.

If Ledbetter’s revisionist claim were plausible, her lawyers would have had every reason to argue that the EEOC charging period was subject to a discovery rule. Further, Taylor and others have made the same point repeatedly—and in very strong language (e.g., “rampant falsehoods”)—since the Ledbetter ruling was issued in May 2007. Yet, as Taylor told me in July 2010, when Ledbetter first offered her revisionist account, no one had ever written to him to dispute the accuracy of his statements on this point. 

Never mind the facts. As Greenhouse points out, Justice Ginsburg’s grandstanding triggered a series of actions that led to Ledbetter’s addressing the 2008 Democratic National Convention and to President Obama’s signing into law in January 2009 the so-called “Lilly Ledbetter Fair Pay Act.” (Taylor makes the case that the law “may be bad for most workers and may benefit mainly lawyers.”) That’s quite a testament to the power of contrived victimhood, aided and abetted (as Taylor documents) by the media’s relentless distortions.

As for Sandra Fluke’s desire to force her Catholic law school to pay for her contraception, Greenhouse is concerned that “Democrats still have a substantive job to do.” “[S]ex without consequences,” Greenhouse says, is “the real issue.” In order to advance that cause, “we need a serious conversation about how women live their lives and about how women’s ability to control their fertility contributes to the welfare of American families.”

But that “serious conversation,” I would submit, has little if any bearing on the fundamental religious-liberty question whether employers or universities that have religious objections to providing insurance coverage for contraceptives (including abortifacients) should nonetheless be compelled to do so. In other words, even if one fully embraces Greenhouse’s ideal of “sex without consequences,” there is no good reason to dragoon religious objectors to be vehicles for providing contraception. The federal government has plenty of alternative means (as I discuss here) to provide contraceptive services directly.

The contrived efforts of the Left to turn Sandra Fluke into a victim have obviously been aided by some ugly personal attacks on her. Defenders of religious liberty need to keep the focus on religious liberty, and those who criticize the mandate as emblematic of the deeper defects of Obamacare likewise should studiously avoid playing into the Left’s penchant for victimhood. Don’t let Sandra Fluke become “this election cycle’s Lilly Ledbetter.”

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